Maly Consulting News Update

There has been so much happening lately in the affirmation action and EEO compliance world. Here are some important news items related to the OFCCP and EEOC.

EEO-1 and Vets-4212 Report – The new EEO-1 report is due March 31, 2018 and will include summary compensation data. However, there is a chance the pay component might not be required, depending on what the new EEOC Chair and DOL Secretary decide and are able to change. We will keep you updated about any changes. The new EEO-1 report applies to private companies, including federal contractors and subcontractors, with 100 or more employees. Federal contractors and subcontractors with 50 to 99 employees are not required to submit summary pay data and hours worked, but will continue to provide gender and race/ethnicity information as part of the EEO-1 report. Federal contractors and subcontractors with 49 or fewer employees and companies without federal contracts that have 99 or fewer employees are not required to complete the EEO-1 report. Please remember that the Vets-4212 report is still due September 30, 2017.

DOL, OFCCP, and EEOC New Leadership – Alexander Acosta was confirmed by the U.S. Senate to be the next Secretary of Labor. Mr. Acosta was formerly the dean of the College of Law at Florida International University and the Chairman of the Board of Directors of U.S. Century Bank. He has served as a member of the National Labor Relations Board, Assistant Attorney General for the Civil Rights Division of the United States Department of Justice during the George W. Bush administration, and U.S. Attorney for Southern District of Florida. However, no one has been appointed as the Director of the OFCCP. Some see this as a sign that the OFCCP and EEOC will merge. President Trump nominated Janet Dhillon as the new Chair of the EEOC. She has worked as a corporate lawyer for companies including: US Airways, J.C. Penney, Burlington Stores Inc.’s. If confirmed, she would serve a five-year term.

Proposed Merger of OFCCP and EEOC – The White House’s budget proposed merging the OFCCP and EEOC. The reason is to “reduce operational redundancies, promote efficiencies, improve services to citizens and strengthen civil rights enforcement.” However, civil rights groups and employer groups, such as the NAACP and the U.S. Chamber of Commerce, are skeptical of its benefits. The OFCCP would still be responsible for auditing federal contractors for federal affirmative action compliance and the EEOC would still respond to alleged violations under Title VII, ADA, the Age Discrimination in Employment Act, the Equal Pay Act, and the Genetic Information Nondiscrimination Act. Currently the OFCCP does not enforce these laws, so the new proposed agency would have a lot more power during audits. Some say it would be even more confusing for federal contractors to understand enforcement of these regulations.

DOL and EEOC Budgets – In May 2017, Department of Labor Secretary, Mr. Acosta, appeared before the House Appropriations Labor, Health and Human Services, Education and Related Agencies Subcommittee. He defended the White House’s proposed reduction of 21% in the DOL budget, by saying “we are going to do more with less” and that enforcement would not go down. In order to accomplish this, Mr. Acosta said the DOL would increase efficiency and streamline the department. The proposed budget also allocates approximately $88 million to the OFCCP. Last year the OFCCP was allocated $105 million. The EEOC’s proposed allocation is $364 million, which is basically the same as last year.

Trump Administration Decreasing Labor Regulations – Trump administration has made an effort to reduce labor regulations. For example, in March 2017, President Trump repealed Executive Order 13673 Fair Pay and Safe Workplaces, also known as the “blacklisting rule.” This rule was controversial because it would have required federal contractors to disclose information related to its company’s labor law compliance when bidding on federal contracts. Also, in early June, the DOL announced its withdrawal from the Obama administration’s standard of “joint employers.” Many companies were against the previous interpretation because it was seen as too expansive and would put franchise businesses at increased risk of lawsuits.

2017 Court Cases – Below are a few important 2017 court cases relating to affirmative action and EEO compliance.

OFCCP v. Google – After providing a large amount of applicant and employee compensation information and spending $500,000 and 2,300 person hours on an OFCCP audit, Google refused to provide additional compensation information to the OFCCP. The OFCCP claimed an unlawful denial of access. The judge ruled that Google must provide additional compensation information, as well as, personal contact information for thousands of employees, if available.

Williams v. AT&T Mobility Servs. LLC – The plaintiff was a customer service representative who suffered from mental health issues. The court dismissed the case saying “there are some jobs that a person with disabilities simply is unable to perform.” It is important to ensure that job advertisements and job descriptions have the mental and physical job qualifications for the position.

Blatt v. Cabela’s Retail Inc. – Blatt was allegedly fired for a disability of gender dysphoria. This case took place in the U.S. District Court for the Eastern District of Pennsylvania and the judge denied dismissal of the case.